34 S.C. 468 | S.C. | 1891
The opinion of the court was delivered by
.The full and clear statement of the "facts in this case by Mr. Miles, the master, in his two reports, which should be embraced in the report of the case, relieves us of the necessity of going into any detailed statement of the facts, and we will therefore confine ourselves to a consideration of the questions raised by this appeal, calling attention to such facts only as are necessary to a proper understanding of the points now involved.
The general question involved is as to the priority of the liens or claims of the several parties upon a certain lot in the city of
At first view it may seem inconsistent to give a section* of a statute a retroactive operation as to one of the subjects mentioned therein, and deny a similar operation as to another subject mentioned in the same section. But the inconsistency is seeming rather than real. There can be no doubt that it is entirely competent for the court to declare one portion of a statute unconstitutional, and at the same time recognize the constitutionality of that portion of the same statute which does not conflict with any constitutional provision. Wardlaw v. Buzzard, 15 Rich., 158; State v. Carew, 13 Rich., 498. So also a statute which in general terms refers to all contracts, may be declared unconstitutional as to certain contracts, while its constitutionality as to other contracts may be recognized. Barry v. Iseman, 14 Rich., 129, heard by the Court of Errors in connection with State v. Carew, supra. In State v. Platt (2 S. C., 150), it was held that one portion of a section of an act might be declared unconstitutional, while another portion of the same section may be held free from all constitutional objection; and the same doctrine was recognized, though the point was not distinctly decided, in State v. Hagood, 13 S. C., at page 56. The test, according to these two cases last cited, seems to be whether the unconstitutional provision relates to an independent matter which can be separated from the rest of the section without impairing its efficiency or altering its terms, whether the portion declared unconstitutional was capable of being the subject of a separate, independent act.
Upon the same principle we see no reason why one portion of a section of a statute dealing with one subject may not be declared retroactive, from the necessity of the case, while another portion of the same section dealing with a distinct and different subject, as to which no such necessity arises, may not be construed as prospective only, It is manifest that this section was dealing with two entirely distinct and different subjects, either one of which might have been omitted or obliterated without in any way affecting the efficiency of the provisions of the statute as to the other. Either might have been made the subject of a separate act. There was no such connection between them as required that the statute should be construed alike as to both. For example, there was nothing to prevent the statute from being construed constitutional as to judgments, and unconstitutional as to mortgages, or vice versa. And so we think there is nothing to prevent the statute from being construed retrospective as to judgments, especially when such a construction is demanded by the necessity of the case, and prospective as to mortgages, where no such necessity exists. It seems to us, therefore, that the act of 1879, now incorporated in the General Statutes as section 1831, cannot be construed as applying to a mortgage executed anterior to the date of that act, and that the Circuit Judge erred in holding otherwise.
It is contended that the judgment of 15th of July, 1881, was void, because Mrs. Enston, the plaintiff in that judgment, had previously obtained a judgment for the same debt in the action at law on the bond, and the case of Anderson v. Pilgram (30 S. C., 499), is relied on to sustain this proposition. All that case holds is that a mortgagee cannot maintain an action at law on his debt, while at the same time he is prosecuting an action in chancery, for the foreclosure of his mortgage and claiming judgment for any deficiency that may arise from the insufficiency of the proceeds of the sale of the mortgaged premises to pay the mortgage debt. But the pendency of another action, or the previous recovery of judgment, for the same debt, is a defence which must be pleaded and proved like any other defence; and if it is not so
The judgment of this court is, that the judgment of the Circuit-Court, in so far as it adjudges that the lien of the plaintiff’s mortgage has been destroyed by the act of 1879, be reversed,